Victims of Baltimore’s Gun Trace Task Force win $6M settlement after decade-long pursuit of justice

The case seemed ordinary at first.

Tragic, of course, but a fairly straightforward insurance issue. A couple — Elbert Davis Sr. and Phosa Cain — had been struck by an uninsured speeding driver on April 28, 2010.

Davis died and Cain suffered serious, lasting injuries. The family wanted accountability, so they turned to Judson H. Lipowitz and the law firm of Azrael, Franz, Schwab, Lipowitz & Solter LLC, which handles personal injury and wrongful death cases.

It wouldn’t become clear until years later that the crash was not so simple — in fact, it was a central piece of the biggest police corruption scandal in Baltimore history. And that nearly 13 years later, Davis and Cain’s children would win a major settlement from the city of Baltimore with help from the same firm that began the journey with them.

“This is like a saga,” Lipowitz said. “We’re proud of what we were able to do for the Davis family.”

Baltimore’s Board of Estimates on Wednesday approved a $6 million settlement to the family, among the largest to result from the corrupt actions of the now-defunct Gun Trace Task Force.

Even in the staid language of federal court opinions, the facts of the case “shock the conscience:”

On April 28, 2010, three plainclothes Baltimore Police Department officers tried to stop a vehicle in the city’s Grove Park neighborhood, claiming to have seen drug activity. The officers boxed in the car and approached it with their guns drawn.

The driver of the vehicle, Umar Burley, would later say he believed he was being robbed, not stopped by police. He fled, reaching speeds of up to 90 to 100 miles per hour, and the officers followed, blowing through stop signs in five different intersections without ever activating their lights and sirens, according to court records.

Burley ran a stop sign and struck the vehicle Davis was driving at the intersection of Gwynn Oak and Belle avenues. Davis died of his injuries and Phosa Cain, his passenger and life partner, suffered severe injuries. Cain died of an unrelated cause several years after the crash.

When the police arrived moments later, they searched Burley’s vehicle but did not find drugs, which would have supported his arrest and the chase that followed.

According to court records, Officer Wayne Jenkins instructed another officer to call and ask a colleague to bring the “stuff,” a reference to a stash of illegal drugs. Once the contraband had been brought to the scene of the crash, another officer planted 28 grams of heroin in Burley’s vehicle.

The truth of what happened wouldn’t become public for years. In the meantime, Burley pleaded guilty to drug-related crimes and to vehicular manslaughter for causing Davis’s death.

He served seven years in prison before federal prosecutors made explosive allegations that members of the Gun Trace Task Force had terrorized Baltimore’s Black neighborhoods for years, stealing drugs and money and trampling residents’ civil rights.

Before those revelations, Lipowitz and the Azrael Franz firm worked with the Davis family to investigate the crash and handle Davis’s estate. The police report about what had happened, which the family relied on, did not implicate the officers who chased Burley, Lipowitz said.

“We didn’t know about the lack of probable cause, we didn’t know about the pattern and practice of illegal stops and pursuit, we didn’t know about the planting of drugs in Mr. Burley’s vehicle after the crash,” Lipowitz said. “We wouldn’t have had any way of knowing any of that.”

They learned the truth when the public did years later. The full impact of what had happened didn’t hit until November 2017, when a federal indictment against Jenkins laid out his involvement in the crash.

This was no longer a claim against an uninsured driver. Instead, it became a complex civil rights lawsuit that would require a major effort from the Azrael Franz team.

In the end, the family’s case came to involve every lawyer at the firm, which gained renown for helping the families of five people who were killed on 9/11 get answers about the security failures that led to the tragedy.

The family filed their lawsuit against the Baltimore Police Department, Wayne Jenkins and several other officers in August 2018.

The litigation came with another obstacle: it is incredibly difficult to prove that police officers engaging in a high-speed chase violated a person’s due process rights, even if that person wasn’t involved in the pursuit.

The U.S. Supreme Court has held that even when officers negligently cause harm, those actions generally don’t violate a person’s due process rights unless they “shock the conscience.”

As U.S. District Judge Stephanie A. Gallagher wrote in April 2020, “there is a long line of cases holding that a police officer engaging in a high-speed pursuit, eventually leading to the death of a bystander uninvolved in the pursuit, is not, by itself, conscience-shocking behavior.”

But the judge found that the Gun Trace Task Force’s actions in the Davis family’s case were egregious enough to qualify under the Supreme Court’s standard, which was outlined in a case called County of Sacramento v. Lewis.

“If there were ever a case whose facts almost precisely fit the contours of the Lewis Court’s narrow definition of a police chase that might shock the conscience, plaintiffs have alleged it,” Gallagher wrote.

She concluded that the police officers were not driven by their “instinct to do (their) job as a law enforcement officer,” but instead by “an improper or malicious motive.”

The finding was a major victory for the family. Gallagher also declined to dismiss much of the complaint against BPD and the officers in that decision.

The case dragged on for another two years and was set for a trial in the spring after Gallagher denied the police department’s motion for summary judgment in June. With help from a mediator, U.S. Magistrate Judge J. Mark Coulson, the parties reached an agreement instead.

“After a series of unfavorable rulings against the city, the city finally recognized the risk it was facing if it had decided to proceed to trial,” Lipowitz said. “In our view, a jury would have been incensed by such atrocious facts.”

Baltimore’s Board of Estimates finally approved the settlement on Wednesday. Mayor Brandon Scott pointed to the case as an example of the importance of police reform efforts designed to prevent abuses like those that happened under the Gun Trace Task Force.

“When you think about the history that went around this unit, it brings into light the importance of all the reforms and efforts we’ve undertaken,” Scott said.

The $6 million brings the total amount the city has paid in Gun Trace Task Force settlements to more than $22 million.

The city also settled with Burley and Matthews, the two men who were driving the car that struck Davis, for $8 million in 2020 and agreed to pay a judgment that Davis’s family had won against Burley.

John R. Solter Jr., another Azrael Franz lawyer who handled the Davis family’s civil rights lawsuit, called the settlement “ground-breaking.”

“I know of no other civil rights case in this country where the family of innocent bystanders killed or injured as a result of police misconduct has achieved such a large recovery,” Solter said. “We are very pleased to deliver justice to our clients, even if it’s long overdue.”

Shirley Johnson, one of the daughters of Davis and Cain, credited the firm with helping the family during the difficult times that followed their father’s death.

“If we didn’t have our lawyers to lean on, I don’t know what we would have done, because I know it was a difficult case to prove,” Johnson said.

“We’re like family now,” she said.